s.42(2)(e) of Transfer of Land Act 1958

Traditionally leases in Victoria have not been registered because of the protection afforded by s. 42(2)(e) of the Transfer of Land Act 1958 which provides that :

“….land which is included in any folio of the Register or registered instrument shall be subject to –

…..

(e)   the interests of (but excluding any option to purchase) of a tenant in possession of the land;”

Because of s.42(2)(e) any purchaser of the relevant land was bound by the lease. The reference to “tenant in possession” means a person in actual possession of the land. See: Burke v Dawes (1937-38) 59 CLR 1 at 17-18;  Balanced Securities Ltd v Bianco [2010] VSC 162 at [79].

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  1. #1 by David McKenzie on July 21, 2011 - 2:47 pm

    Certainly the cases above support the proposition that if your are in occupation (with a valid lease) that you are a tenant in possession. However they are silent as to the proposition that you need to be in occupation, rather than have the right to occupy under a valid lease, to be a tenant in possession.

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